BLABES DIKE´
BLABES DIKE´ (
βλάβης
δίκη).; This action was available in all cases in which one person
had sustained a loss by the conduct of another; and from the instances that
are extant, it seems that whether the injury originated in a fault of
omission or commission, or impaired the actual fortune of the plaintiff or
his prospective advantage, the action would lie, and might be maintained,
against the defendant. The two great classes into which
βλάβαι may be divided are the
ἔνθεσμοι and the
ἄθεσμοι,--terms
found in the grammarians only, not in classical writers. The first of these
will include all causes arising from the non-fulfilment of a contract to
which a penal bond. was annexed, and those in which the law specified the
penalty to be paid by the defendant upon conviction; the second, all
injuries of property which the law did not specify
nominatim,
but generally directed to be punished by a fine equal to twice the estimated
damage, if the offence was intentional; if otherwise, by a bare
compensation. (Meier,
Att. Proc. p. 186, &c., p. 475,
&c.; Dem.
c. Mid. p. 528.43.) The declaration of the
plaintiff seems always to have begun with the words
Ἔβλαψέ με, then came the name of the defendant, and next
a description of the injury, as
οὐκ ἀποδιδοὺς
ἐμοὶ τὸ ἀργύριον in Demosthenes (
pro
Phorm. p. 950.20; cf.
in Pantaen. p. 973.22).
It is of course impossible to enumerate all the particular cases upon which
this action would arise ; but the following may be specified. Callippus
brings an action
βλάβης against the banker
Pasion, for breach of contract in paying over the balance of a deceased
depositor, Lycon, to one Cephisiades; Lycon having, as the plaintiff
alleges, stipulated on making the deposit that it was to be paid to
Callippus only. In a later action against the son of Pasion, Apollodorus, he
claims as a creditor of Pasion's estate: the latter is a
δίκη ἀργυρίου, not
βλάβης (Demosth.
c. Callipp; p. 1240.14).
Hence Caillemer argues (9
me Etude, pp. 30, 31), with good
reason, that the
δίκη βλάβης did not, as
such, form a part of the law of debtor and creditor. On the other hand,
Nausimachus and Xenopeithes, who had brought an action
ἐπιτροπῆς against their guardian Aristaechmus, and had
compromised it for three talents, re-open the question after his death, and
bring a
δίκη βλάβης against his sons
(Demosth.
Or. 38). This can only mean that a claim against
the estate of Aristaechmus, too vague in its character for a
δίκη χρέους, sheltered itself under the
convenient generality of a
δίκη βλάβης.
Supposititious testimony given in the name of another, thereby rendering
such person liable to an action
ψευδομαρτυριῶν, was again a
βλάβη at Attic law (Demosth.
c. Aphob. iii. p.
849, § § 15, 16). In the speech of Demosthenes
πρὸς Βοιωτὸν περὶ τοῦ ὀνόματος, the
plaintiff Mantitheus treats as a
βλάβη the
inconvenience caused by his half-brother, Boeotus, assuming his name. Again,
the liability of an owner for the acts of his slave or his domestic animal
came under this head; as in the old law of Solon quoted by Lysias
οἰκῆος καὶ δούλης βλάβην ὀφείλειν
(
c. Theomnest. 1.19; cf. Plato,
Leg.
11.936 C, D); and the speech of Lysias,
περὶ τοῦ
κυνὸς, quoted by Harpocration (s. v.
καρκίνος).
The proper court was determined by the subject of litigation. A
βλάβη in the market, like the damage done by
Philocleon to the cakewoman's basket (
Aristoph. Wasps 1407), would come before the Agoranomi;
dangerous buildings, before the Astynomi; commercial and mining cases, as a
rule, before the Thesmothetae; those arising out of the law of inheritance,
before the Archon Eponymus.
[
J.S.M] [
W.W]
